Data Breach & Medical Malpractice Liability in Massachusetts

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Judith F. Albright, Esq.

UPDATE: Patients Need Not Show Specific Harm To Claim Standing For Suit Based On Data Breach

In a recent Devine Health newsletter, we alerted you to an August 2015 Illinois Appeals Court ruling, Maglio v. Advocate Health and Hospital Corporation, concerning the loss of health information on computers stolen from a hospital. The Illinois court held that, absent a showing of actual use of that information or other specific harm, patients and former patients whose data was stored on those stolen computers lacked standing to bring a lawsuit for data breach.

Courts in the Commonwealth of Massachusetts, however, appear to be moving in the opposite direction.  In a recent Suffolk County Superior Court decision,Walker, et al v. Boston Medical Center Corporation, No. 2015-1733-BLS 1 (Mass. Super. Ct.), Judge Edward Leibensperger denied Boston Medical Center’s Motion to Dismiss a lawsuit brought after alleged accidental online disclosure of patient records. The court specifically noted that, due to the intense privacy of medical information, plaintiffs should not be required to allege a particularized injury in order to maintain a cause of action for a data breach event. In sum, because electronic information, once breached, can be infinitely copied and shared at the click of a button, the court ruled the danger of exposure alone sufficient to allow the case to go forward.

Changing Forum for Massachusetts Medical Malpractice Trials?

For many years, any case in the Commonwealth of Massachusetts alleging damages in excess of $25,000 was required, as a matter of law, to be tried in the Superior Court.  It was a non-waivable jurisdictional issue. More recently, courts concluded this was a “threshold issue,” leaving District Courts with some discretion as to whether to retain jurisdiction if the value of the case was unclear.  However, this meant that the majority of medical malpractice cases were tried in the Superior Court.  In Massachusetts, a Superior Court jury seats 12 jurors, rather than the District Court six, and there are various procedural differences. Further, procedural hurdles in the Superior Court often limit the success of pro se cases.

However, a pilot project scheduled to launch in 2016 may move a larger number of medical malpractice cases into the District Court sessions. The new pilot program will steer cases with an as-yet-undisclosed higher monetary limit into the District Court system. Details of the pilot program, including location and start date, have not yet been made public. No new monetary threshold has been set.  However, the sum of $50,000 has been discussed. At this level, many smaller medical malpractice cases, including specialty claims such as oral surgery, chiropractic, etc., could find themselves in the District Court as early as the fourth quarter of this year. In the District Court, attorneys will not have available to them tools commonly used in the Superior Court, such as attorney-conducted voir dire and a specific prayer for quantified financial relief in closing arguments.

Stay tuned for details on this pilot project.

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